213 F.3d 443 (9th Cir. 2000), 98-15704, Resnick v. Hayes, et al.

Docket Nº:98-15704
Citation:213 F.3d 443
Case Date:January 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 443

213 F.3d 443 (9th Cir. 2000)

HERMAN RESNICK, Plaintiff-Appellant,



No. 98-15704

United States Court of Appeals, Ninth Circuit

January 11, 2000

Argued and Submitted October 7, 1999

Amended May 22, 2000

Page 444

Howard A. Slavitt, Coblentz, Patch, Duffy & Bass, San Francisco, California, for the plaintiff-appellant.

No appearance for the defendants-appellees.

Kathleen Moriarty Mueller and Edward R. Cohen, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for the amicus curiae.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-98-00904-SBA.

Before: Alfred T. Goodwin, Mary M. Schroeder, and Susan P. Graber, Circuit Judges.


The opinion filed January 11, 2000, is amended as follows:

Slip opinion page 333, last paragraph, through the first full paragraph on page 335, substitute the following:

Under Sandin, a prisoner possesses a liberty interest under the federal constitution when a change occurs in confinement that imposes an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." 515 U.S. at 484. In this case, Plaintiff has failed to establish a liberty interest protected by the Constitution. That is so because Plaintiff has not alleged that his confinement, whether administrative or disciplinary, presented "the type of atypical, significant deprivation[that] might conceivably create a liberty interest." Id. at 486. The Court in Sandin relied on three factors in determining that the plaintiff possessed no liberty interest in avoiding disciplinary segregation: (1) disciplinary segregation was essentially the same as discretionary forms of segregation; (2) a comparison between the plaintiff's confinement and conditions in the general population showed that the plaintiff suffered no "major disruption in his environment"; and (3) the length of the plaintiff's sentence was not affected. Id. at 486-87.

Here, there is no allegation that Plaintiff's segregation in the SHU was materially different from those conditions imposed on inmates in purely discretionary segregation. Nor is there an allegation that the conditions in the SHU, compared with conditions in the general population, created "a major disruption" in Plaintiff's environment.3 Finally, there is no allegation that the length of Plaintiff's sentence was affected.

In sum, so far as we know from his complaint, Plaintiff's placement and retention in the SHU were "within the range of confinement to be normally expected" by prison inmates "in relation to the ordinary incidents of prison life." Id. at 486-87. Therefore, we conclude that Plaintiff had no protected liberty interest in being free from confinement in the SHU pending his disciplinary hearing. That being so, Plaintiff has no cognizable due process claim. Likewise, because Plaintiff had no protected liberty interest in not being confined in the SHU, he fails to state a Fourth Amendment claim.

With this amendment, Appellant Herman Resnick's Peti- tion for Panel Rehearing is DENIED.



[3] Plaintiff alleged that, in the SHU, recreational opportunities and access to showers are limited; the mattress is flat and dirty; no pillow is allowed; a prisoner cannot have access to the library; and half the time the food is cold. He did not allege that conditions were different in administrative segregation, nor did he allege the extent to which conditions were better in the general population.


GRABER, Circuit Judge:

At all times relevant to this appeal, plaintiff Herman Resnick was a federal prisoner. Defendants are the warden (Hayes) and four correctional officers (Ernst, Myers, Aune, and Wade) who work at a prison in which Plaintiff was incarcerated. Plaintiff filed a complaint in federal district court, claiming that Defendants had violated his constitutional rights when they confined him in the prison's Special Housing Unit (SHU) pending a disciplinary hearing. The district court dismissed Plaintiff's complaint, pursuant to 28 U.S.C.S 1915A, for failure to state a claim upon which relief could be granted. Plaintiff filed this timely appeal.


On December 2, 1996, Plaintiff was charged with, and pleaded guilty to, bank larceny in violation of 18 U.S.C. S 2113(b). After pleading guilty, and at all relevant times, Plaintiff was incarcerated at the Federal Detention Center in Dublin, California. On August 13, 1997, Plaintiff was sentenced to 103 months' imprisonment.

On April 8, 1997, after Plaintiff had pleaded guilty to bank larceny but before he was sentenced for committing that crime, Plaintiff was found guilty of using narcotics in the prison. See Resnick v. Adams, 37 F.Supp.2d 1154, 1156 (C.D. Cal. 1999). Plaintiff was disciplined for his use of narcotics by, among other things, being placed in the prison's SHU for 30 days.

On April 10, 1997, after Plaintiff had been placed in the SHU, Wade searched Plaintiff's cell. Wade found a white powdery substance at the bottom of a Sweet 'N Low box on Plaintiff's desk. Ernst field-tested the white powder and determined that it was cocaine. Later that same day, Plaintiff was given written notice of the charge against him. Plaintiff denied that he had possessed any cocaine and asked that another test be conducted on the contents of the Sweet 'N Low box. Plaintiff alleges that the results of the second test were negative for the presence of cocaine.

On April 12, 1997, Plaintiff appeared before a prison counselor, Cadena, who considered the charge. Cadena advised Plaintiff of the charge against him. Plaintiff admitted owning the Sweet 'N Low box but denied that he had possessed cocaine. Cadena referred the matter to Discipline Hearing Officer Myers for further hearing, on the grounds that (1) a white powdery substance was found in the Sweet 'N Low box in Plaintiff's cell, (2) Plaintiff admitted that he owned the box, and (3) the substance in the box field-tested positive for cocaine.

On May 17, 1997, Plaintiff wrote to Myers, complaining that he had not yet had a hearing to contest the drug charge. Myers responded and advised Plaintiff that the hearing had been "postponed pending the results of the lab. " A hearing was held on June 19, 1997. According to Myers' hearing report, Plaintiff appeared with his staff representative, Aune. Although Plaintiff alleges that he attempted to call Wade as a witness, Myers' hearing report states that Plaintiff did not ask that any witnesses be called. Additionally, the report states that Myers considered a "crime laboratory report." Myers concluded that "no prohibited act [was ] committed" and ordered that the incident report be expunged from Plaintiff's file.

Plaintiff alleges that Myers did not postpone Plaintiff's hearing because the prison had yet to receive a laboratory report concerning the white powder found in the Sweet 'N Low box. Rather, Plaintiff claims, no such report ever was prepared. Plaintiff alleges that Myers postponed his hearing so that Hayes could pressure Plaintiff into divulging information about correctional officers who were bringing narcotics into the prison. Plaintiff further alleges that Hayes told Plaintiff that, if he did not cooperate, he would not be released from the SHU until after Hayes retired. Additionally, Plaintiff alleges that Hayes instructed Aune to tell Plaintiff that, if Plaintiff told anyone about the matter, Aune would "hang" Plaintiff and make it "look like an accident."

Plaintiff filed a pro se complaint under 42 U.S.C.S 1983 against Hayes, Ernst, Myers, Aune, and Wade, claiming that they had conspired to violate his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments. Pursuant to 28 U.S.C. S 1915A,

[1] the district court conducted a preliminary screening of Plaintiff's complaint. Although the court noted that "[p]ro se pleadings must . . . be liberally construed," it dismissed the complaint for failure to state a claim. The court held that Plaintiff's placement...

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